The Law Office of Gilbert & O'Bryan has set up a new Facebook page and Twitter Account. To access them, simply click on the links below.
Facebook: http://www.facebook.com/pages/Gilbert-OBryan-LLP/136141086412290?created
Twitter: http://twitter.com/GilbertOBryan
Enjoy!
Tuesday, June 29, 2010
How to Plead in Civil Service Appeals
1. Layoff:
a. Where money is an issue, consider whether the reluctance to raise new revenue through taxation is an issue. If politicians are aggressively cutting taxes, then they should be confronted when they plead poverty when it comes to paying employees. I WAS LAID OFF FOR AN ALLEGED LACK OF MONEY, BUT THE EMPLOYER HAS CALCULATED TO DEPLETE THE PUBLIC TREASURY, WITHOUT REGARD TO OBLIGATIONS UNDER CIVIL SERVICE LAW.
b. Layoff selection: I WAS SELECTED FOR LAYOFF WHEN OTHER EMPLOYEES IN THE SAME JOB TITLE WERE KEPT EMPLOYED. When layoff selection is the issue, that is someone else, but not me, should be laid off, allege violations of Section 67, which requires posting of a seniority roster. Employees are entitled to certain information before they are laid off and seniority rosters are an important part of that information.
c. Defense for employers: If the employee claims priority over less senior employees who are currently serving in provisional promotions, see Andrews v. Mass. Dept. of Revenue.
d. Reorganizations: THE EMPLOYERS HAS REORGANIZED THE WORK OF THE DEPARTMENT SPECIFICALLY TO ELIMATE MY POSITION. If the reorganization is a pretext to eliminate an employee, Cambridge Hous. Auth. v. Civil Serv. Comm’n, 7 Mass. App. Ct. 586, 389 N.E.2d 432 (1979). In the case of a genuine reorganization positions can be abolished, Camerlengo v. Civil Serv. Comm’n, 382 Mass. 689, 414 N.E.2d 350 (1981) (steam fitter who worked mainly at a particular public housing project was no longer needed after that property was sold). However, baring the pretext argument, the employer should win where the reorganization was a different plan to assign work, even giving the laid off employees work to a higher paid employees. Maybe they are higher paid because they can do the work of several lower paid employees.
a. Where money is an issue, consider whether the reluctance to raise new revenue through taxation is an issue. If politicians are aggressively cutting taxes, then they should be confronted when they plead poverty when it comes to paying employees. I WAS LAID OFF FOR AN ALLEGED LACK OF MONEY, BUT THE EMPLOYER HAS CALCULATED TO DEPLETE THE PUBLIC TREASURY, WITHOUT REGARD TO OBLIGATIONS UNDER CIVIL SERVICE LAW.
b. Layoff selection: I WAS SELECTED FOR LAYOFF WHEN OTHER EMPLOYEES IN THE SAME JOB TITLE WERE KEPT EMPLOYED. When layoff selection is the issue, that is someone else, but not me, should be laid off, allege violations of Section 67, which requires posting of a seniority roster. Employees are entitled to certain information before they are laid off and seniority rosters are an important part of that information.
c. Defense for employers: If the employee claims priority over less senior employees who are currently serving in provisional promotions, see Andrews v. Mass. Dept. of Revenue.
d. Reorganizations: THE EMPLOYERS HAS REORGANIZED THE WORK OF THE DEPARTMENT SPECIFICALLY TO ELIMATE MY POSITION. If the reorganization is a pretext to eliminate an employee, Cambridge Hous. Auth. v. Civil Serv. Comm’n, 7 Mass. App. Ct. 586, 389 N.E.2d 432 (1979). In the case of a genuine reorganization positions can be abolished, Camerlengo v. Civil Serv. Comm’n, 382 Mass. 689, 414 N.E.2d 350 (1981) (steam fitter who worked mainly at a particular public housing project was no longer needed after that property was sold). However, baring the pretext argument, the employer should win where the reorganization was a different plan to assign work, even giving the laid off employees work to a higher paid employees. Maybe they are higher paid because they can do the work of several lower paid employees.
Seniority Rosters
With so many layoffs happening, it is a good time to review the salutary features of seniority lists. Under civil service law and in most labor contracts, layoffs are done by reverse seniority, so the newest employees are laid off first. This makes close reference to a seniority roster essential, for it is at this time that ambiguity in the hiring dates can affect those who leave and those who stay. For example, consider the client who was hired and fired before completing his probation period. Later he was hired by another department and worked there for many years. Then, he was laid off without his employer’s taking into account his earlier employment. If such employment had been counted, he would not have been laid off.
To avoid such questions coming up at the last minute, civil service law clearly requires that the seniority roster be posted:
G.L. Ch.31, §67: “Each appointing authority shall submit to the administrator, on or before March first of each year, a list of civil service employees in its department as of January second of the same year. Such list . . . shall be made under the penalties of perjury, shall specify the series and title of the position of each such employee and the seniority of such employee as determined pursuant to section thirty-three
“Each such appointing authority shall sign such list and post it forthwith in all areas under its control where five or more civil service employees begin their tour of duty. Such list shall be so posted immediately after it is submitted to the administrator so that it may be inspected during a reasonable period before May first of the year it is submitted. The date of posting such list shall appear on the list which shall remain posted for one year after such date of posting...”
There are criminal penalties for neglecting this duty.
For employees the advantages of access to this list are to catch mistakes and to resolve such mistakes directly with the employer. Where an employee is laid off without having had access to a posted list, and if the layoff is appealed, the employee should always allege the violation of Section 67 if layoff selection is an issue. If the appeal can succeed for other reasons, the violation of Section 67 can be argued for attorneys’ fees and criminal penalties, which might be enough to persuade the employer to settle early.
It seems that employers do not like to post these lists where there are many provisional employees because it might prompt those provisional employees to ask for examinations. It also holds up the civil service employees as having an advantage. However, there is an important strategic reason for employers to post the seniority rosters: In negotiating with unions, employers usually find that public sector unions prefer layoffs to contract concessions, while the employer would prefer to pay less for the same number of workers. Perhaps the union hopes that the public will demand more employees, particularly in schools and in public safety. Perhaps the union believes it is more important to preserve historic contract gains so future employees will have well paying jobs with benefits not depreciated. If the soon-to-be-laid-off employees could see their names at the bottom of the lists, perhaps they would be more motivated to change the position of their union.
GG:msw (L046-02, 6/6/09 ver.)
To avoid such questions coming up at the last minute, civil service law clearly requires that the seniority roster be posted:
G.L. Ch.31, §67: “Each appointing authority shall submit to the administrator, on or before March first of each year, a list of civil service employees in its department as of January second of the same year. Such list . . . shall be made under the penalties of perjury, shall specify the series and title of the position of each such employee and the seniority of such employee as determined pursuant to section thirty-three
“Each such appointing authority shall sign such list and post it forthwith in all areas under its control where five or more civil service employees begin their tour of duty. Such list shall be so posted immediately after it is submitted to the administrator so that it may be inspected during a reasonable period before May first of the year it is submitted. The date of posting such list shall appear on the list which shall remain posted for one year after such date of posting...”
There are criminal penalties for neglecting this duty.
For employees the advantages of access to this list are to catch mistakes and to resolve such mistakes directly with the employer. Where an employee is laid off without having had access to a posted list, and if the layoff is appealed, the employee should always allege the violation of Section 67 if layoff selection is an issue. If the appeal can succeed for other reasons, the violation of Section 67 can be argued for attorneys’ fees and criminal penalties, which might be enough to persuade the employer to settle early.
It seems that employers do not like to post these lists where there are many provisional employees because it might prompt those provisional employees to ask for examinations. It also holds up the civil service employees as having an advantage. However, there is an important strategic reason for employers to post the seniority rosters: In negotiating with unions, employers usually find that public sector unions prefer layoffs to contract concessions, while the employer would prefer to pay less for the same number of workers. Perhaps the union hopes that the public will demand more employees, particularly in schools and in public safety. Perhaps the union believes it is more important to preserve historic contract gains so future employees will have well paying jobs with benefits not depreciated. If the soon-to-be-laid-off employees could see their names at the bottom of the lists, perhaps they would be more motivated to change the position of their union.
GG:msw (L046-02, 6/6/09 ver.)
About Our Blog
Here we present information and opinion about Massachusetts civil service and public sector employment. These include information of interest to employees, legislators, and administrators. We will consider examinations, selection, seniority, promotion, provisional appointments, discipline, layoffs, and retirement issues. We will post important documents from legislative study commissions, major court decisions, and Civil Service Commission decisions. We will report on court decisions, bills before the legislature, and activities of the state Civil Service Commission. This blog is sponsored by Gilbert and O’Bryan, LLP, a law firm in Boston that specializes in civil service law.
Subscribe to:
Posts (Atom)